Opinion
Opinion By: Jack Conway, Attorney General; Jessica R. C. Malloy, Assistant Attorney General
Open Records Decision
In this open records request, Bret Walker asked for a "[r]aw digital copy of databases and file systems that contain data made available via [the Jefferson County Property Valuation Administrator (PVA or JCPVA)] Online Subscription Service." While the PVA is not statutorily required to make public records available in electronic form, it affirmatively exercised its discretion to provide online access to those records. See KRS 61.874(6). Accordingly, the fees charged cannot typically exceed the costs of "physical connection to the system and reasonable cost of computer time access charges." See KRS 61.874(6)(a). If, however, the records are requested for a commercial purpose, as defined at KRS 61.870(4), extra fees can be charged. See KRS 61.874(6)(b); see also PVA Open Records Commercial Fee Schedule. 1
In determining whether an open records request has a commercial purpose, we first ask whether when any part of the record requested, in any form, will be used either "direct[ly] or indirect[ly] . . . for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee." See KRS 61.870(4)(a). If the request causes such a use, we ask whether the request was made "by a newspaper or periodical; . . . a radio or television station in its news or other informational programs[.]" See KRS 61.870(4)(b). If it was, then the request does not have a commercial purpose. Id. When, however, the request is not made by a newspaper, periodical, radio, or television station, it is deemed to have a commercial purpose.
The PVA can impose extra fees for Walker's request, because it has a commercial purpose. First, Walker requested records in order to publish "property assessments, ownership changes, etc." on his website, LouieWatch.com. In doing so, he conceded that "a commercial realty entity is linking to Louie Watch" from their website and that "real estate listings shown on [LouieWatch.com] link to Trulia," (a commercial entity which sells real estate) . Accordingly, the information posted on his website is, at a minimum, indirectly used to sell, resell, solicit, rent, or lease a service. His request, therefore, satisfies the first prong of the test for commercial purpose.
Walker's request satisfies the second prong, as his organization is not a newspaper, periodical, radio, or television station. While his news website may be a "news organization" as he describes it, the website is not one of the four statutorily-limited exclusions from "commercial purposes." Under the canon of statutory interpretation, expressio unius est exclusio alterius, (the express mention of one thing excludes all others), a strict reading of the Open Records Act necessarily limits the application of KRS 61.870(4)(b)'s exclusion to the four items listed in the statute: newspaper, periodical, radio, or television. See Garner, Bryan A., (1999). Black's Law Dictionary (7th ed.). St. Paul, MN: West Publishing. p. 602. Accordingly, being a "news organization" alone, is insufficient to exclude LouieWatch.com's request from the commercial purpose.
Accordingly, the PVA did not subvert the intent of the Act, within the meaning of KRS 61.880(4), by imposing a fee to provide online access to its public records. Walker's request was made with a commercial purpose, because: (1) LouieWatch. com is not a newspaper, periodical, radio, or television station; and (2) the requested records would be used indirectly for the sale, resale, solicitation, rent, or lease of service. Either party is entitled to appeal this decision by initiating action in the appropriate circuit court, under KRS 61.880(5) and KRS 61.882. The Attorney General should be notified of any circuit court action but should not be named as a party in that action or in any subsequent proceeding. KRS 61.880(3).
Distributed to:
Bret WalkerHarold P. ThomasSarah Stewart AshburnerDouglas Dowell
Footnotes
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